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Hazi Wali Mahammad, Accused v. Manik Chandra Raul, Complainant Opposite Party.
Factual and Procedural Background
The opposite party, Manik Chandra Raul, filed a complaint petition before a Union Bench against the petitioner and another individual, Sk. Shibu. The complaint alleged that while the complainant was working in the field, Sk. Shibu, acting under the petitioner's orders, tied the complainant with a napkin and both assaulted him, resulting in the dislodgement of one of the complainant's teeth. After the accused were summoned and the case was pending before the Union Bench, the petitioner applied to the Sub-divisional Magistrate to transfer the case to a subordinate court under the provisions of section 66 of the Bengal Village Self-Government Act. The Magistrate rejected the petition as premature. The petitioner then sought intervention from this Court under section 439 of the Code of Criminal Procedure, challenging the Magistrate's refusal to transfer the case.
Legal Issues Presented
- Whether this Court can interfere with the order passed by the Sub-divisional Magistrate rejecting the transfer petition under the powers conferred by section 439 of the Code of Criminal Procedure.
- Whether the provisions of the Bengal Village Self-Government Act, particularly sections 66 and 93, bar the application of the Code of Criminal Procedure to proceedings before a Union Bench or orders connected thereto.
- Whether it is appropriate for the Court to exercise its superintending jurisdiction under Article 227 of the Constitution to order the transfer of the case in the circumstances presented.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sitalapada Sarkar v. Pulin Behari Gure (42 C.W.N 1068) | Held that under sections 93 and 71 of the Bengal Village Self-Government Act, this Court cannot revise orders of a Magistrate under section 439 of the Code of Criminal Procedure. | The Court relied on this precedent to conclude that it cannot interfere with the Magistrate's order rejecting the transfer petition under section 439 CrPC, as the order was made under the Bengal Village Self-Government Act and not the Criminal Procedure Code. |
Court's Reasoning and Analysis
The Court first examined whether it had jurisdiction under section 439 of the Code of Criminal Procedure to interfere with the Sub-divisional Magistrate's order rejecting the transfer petition made under section 66 of the Bengal Village Self-Government Act. It referred to the precedent in Sitalapada Sarkar v. Pulin Behari Gure, which established that orders passed by Magistrates under the Bengal Village Self-Government Act are not amenable to revision under section 439 CrPC. The Court noted that section 93 of the Bengal Village Self-Government Act excludes the application of the Code of Criminal Procedure to trials or proceedings before a Union Bench or Union Court, but this bar does not strictly apply to orders made by the Sub-divisional Magistrate connected to such proceedings.
However, the Court found that the Magistrate's order under section 66 was not an order under the Criminal Procedure Code but under the Bengal Village Self-Government Act, and the Magistrate was acting as a persona designata rather than as a Magistrate defined by the Criminal Procedure Code. Thus, the Court concluded that it could not exercise powers under section 439 CrPC to revise the Magistrate's order.
Turning to the question of whether to intervene under its superintending jurisdiction under Article 227 of the Constitution, the Court considered the circumstances justifying transfer. The petitioner alleged that the complainant was a servant under the President of the Union Bench, who had deposed in the complainant's favor during an enquiry, potentially prejudicing the trial. Although the Magistrate did not express an opinion on this, the Court proceeded on the basis that these statements were substantially true, as no challenge had been made to them by the complainant.
Given these facts, the Court found it would be grossly unfair to allow the case to continue before the Union Bench and exercised its constitutional superintending jurisdiction to order transfer of the case to the Sub-divisional Magistrate, Midnapore, for trial either by himself or by another Magistrate he may designate.
Holding and Implications
The Court held that it could not interfere with the Sub-divisional Magistrate's order under section 439 of the Code of Criminal Procedure but, exercising its superintending jurisdiction under Article 227 of the Constitution, ordered the transfer of the case from the Union Bench to the Sub-divisional Magistrate for trial.
The direct effect of this decision is that the ongoing trial before the Union Bench shall be transferred and conducted by the Sub-divisional Magistrate or his designate. The Court did not set any new precedent regarding the application of section 439 CrPC to orders under the Bengal Village Self-Government Act but clarified the limits of its jurisdiction in such matters.
Das Gupta, J.:— The opposite party Manik Chandra Raul filed a petition of complaint before a Union Bench against the present petitioner and one Sk. Shibu alleging that when the complainant was working in the field, Sk. Shibu, under the orders of the petitioner, tied the complainant with a napkin and then both assaulted him as a result of which one tooth of the complainant was dislodged. After process had been issued against the accused and when the case was pending before the Union Bench, an application was made by the petitioner before the Sub-divisional Magistrate, praying that under the provisions of section 66 of the Bengal Village Self-Government Act the Sub-divisional Magistrate should transfer the case to a Court subordinate to himself. The learned Magistrate has rejected this petition on the ground that this is premature. Against this order of the learned Magistrate the petitioner filed an application asking this Court for exercise of its powers under sec. 439 of the Code of Criminal Procedure.
1. The first question that arises is whether this Court can interfare with the order passed by the Sub-divisional Magistrate rejecting the prayer for transfer, in exercise of its powers under sec. 439 of the Code of Criminal Procedure. In the case of Sitalapada Sarkar v. Pulin Behari Gure (1) (42 C.W.N 1068) this Court held that in view of the provisions of secs. 93 and 71 of the Bengal Village Self-Government Act it was not open to this Court to revise under the provisions of sec. 439 of the Code of Criminal Procedure an order passed by a learned Magistrate. It appears to us that it is not necessary to consider in the present case the effect of sec. 93 of the Bengal Village Self-Government Act. Section, 93 provides that the Code of Criminal Procedure shall not apply to any trial, suit or proceeding before a union bench or a union court. The order passed by the learned Sub-divisional Magistrate is certainly connected with a proceeding before a union bench, but the bar of sec. 93 can hardly be said applicable to the order passed by the Magistrate.
2. Quite apart from sec. 93 of the Bengal Village Self-Government Act, we are of opinion that this Court cannot interfere with orders passed by a Magistrate under sec. 66 of the Bengal Village Self-Government Act in exercise of its powers under sec. 439 of the Code of Criminal Procedure. Quite clearly, sec. 439 of the Code of Criminal Procedure gives the Court powers to set right improper and incorrect orders that have been passed by any court acting under the Criminal Procedure Code. The order passed in the present case under sec. 66 is not an order passed under the Criminal Procedure Code. That itself stands in the way of this Court passing any order under section 439 of the Code of Criminal Procedure in respect of the orders passed by the Magistrate under sec. 66 of the Bengal Village Self-Government Act. It also appears to us that though under sec. 66 of the Bengal Village Self-Government Act a District Magistrate or a Sub-divisional Magistrate may pass an order of transfer, the Magistrate is not acting there as a Magistrate as defined in the Criminal Procedure Code but as a persona designata.
3. The question remains whether it would he proper for us to interfere, in the circumstances of this case, with the order passed by the learned Magistrate, in exercise of our superintending jurisdiction under Art. 227 of the Constitution.
4. The principal ground on which transfer was sought was that the complainant worked as a servant under the President of the Union Bench and that the President of the Union Bench had in fact, deposed in favour of the complainant in an enquiry held by a police inspector. These allegations appear to have been made before the learned Sub-divisional Magistrate. The learned Sub-divisional Magistrate has not expressed any opinion as regards the correctness of these, but in view of the fact that on the connected record before the Magistrate there appears to be no application on behalf of the complaint challenging the correctness of these statements, we think it proper to proceed on the basis that the statements are substantially true. We think, in the circumstances of the case, that it will be grossly unfair if the case is allowed to continue before the Union Bench and it is proper for us in exercise of our superintending jurisdiction to order that the case be transferred to the Sub-divisional Magistrate, Midnapore, for trial by himself or by some other Magistrate to whom ho may transfer the case.
Debabrata Mookerjee, J.:— I agree.
A.K.D-.G.
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